Brown v. Baron

• Decision Date: 23 June 1894
• Citation: 162 Mass. 56,37 N.E. 772
• Parties: BROWN v. BARON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 56

37 N.E. 772

BROWN v. BARON.

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1894

COUNSEL

H.P. Fellows, for appellant.

J.F Haskell, for appellee.

OPINION

MORTON J.

The appellant objects to the payments made by the executor on account of the mortgage on the Moody street property, and also insists that the rents of the Bridge street estate do not belong to the executor, as residuary legatee, but belong to the heirs at law or to the estate. By the eighteenth clause of the will of Mary Merriam Abbott, the Moody street property was specifically devised to John B. Brown, the executor. At the time of the death of the testatrix, it was subject to a mortgage which had been given by the testatrix and her sister to the Mechanics' Savings Bank of Lowell to secure a note given to it by them for money borrowed of it by them. There is nothing in the will indicating an intention on the part of the testatrix that the devisee should pay the mortgage, or that any different course should be pursued in the payment of that debt from that pursued in the payment of her other debts. There is a provision that certain legacies shall abate in case of a deficiency, which would imply that the devisee and legacy to the executor are not to be diminished; and we see nothing to take the case out of the well-settled rule in this state that the devisee of specific real estate is entitled, in the absence of a contrary intention on the part of the testator, to have it exonerated from a mortgage placed upon it by the testator, even though the personal estate is insufficient to pay general legacies. Creesy v. Willis, 159 Mass. 249, 34 N.E. 265; Morse v. Bassett, 132 Mass. 502; Richardson v. Hall, 124 Mass. 228; Farnum v. Bascom, 122 Mass. 282; Towle v. Savasey, 106 Mass. 100; Plimpton v. Fuller, 11 Allen, 139; Hewes v. Dehon, 3 Gray, 205.

By the twenty-fifth clause of the will, the executor is made residuary legatee, and is given power as executor to sell any of the real or personal estate. The Bridge street estate formed part of the rest and residue, and the title therefore vested in the executor, subject to be divested by a sale, and until a sale the rents and profits belonged to the executor as residuary legatee. Gibson v. Farley, 16 Mass. 279; Newcomb v. Stebbins, 9 Metc. (Mass.) 540; Almy v. Crapo, 100 Mass. 218; Brooks v. Jackson, 125 Mass. 307, 310. The effect of the residuary clause was not to...